Monkey’s selfie at center of copyright brouhaha

If the dude really prepared the scene (as in, directed light, framed the shot, did the post processing), then this is clearly his creative product. Who pressed the button doesn't matter. It's common practice to use an assistant as the camera operator, that doesn't mean that the photo belongs to the assistant. From what I understood, though, the monkey took his equipment out of his own volition, so the photographer had little involvement in the process.

I think this is the crux of the issue right here. How much contribution did the camera owner actually have in outcome of the shot?

The man spent thousand of dollars to get out there and a month slogging through the jungle. He put the work in. He owns the photo.

It isn't uncommon to have nature photographs triggered by the animal passing some light beam. Or lightning photographs triggered by the flash. Or a camera installed to take pictures periodically. These presumably give loads of duff shots and some person chooses the decent ones and works on them a bit and publishes. And we really have no idea what processing the photographer did of the raw shots. We wouldn't have this photograph if it wasn't for that photographer. Morally, I think the photographer (the person who owned the camera and "developed the film") has some rights to it, regardless of whether law has anything to say on the issue.

Setting up a camera to be triggered by a broken light beam, or motion, or light sensitivity shows intent though. The photographer had to set that up ahead of time. The photographer in this instance didn't intend for his camera to be stolen and used by the monkey.

Of course they do. You can't put a dog in a microwave, for example. The courts in the US have consistently decided that animals do have some basic rights.

Now, whether or not animals have the right to own property, including copyright, that's a completely different question. I suspect it will come down to a court decision.

Actually, in the US at least, Courts have long decided that. The answer is Yes*. Yes, that's an asterix, indicating a "but....". In some famous inheritance cases, specific animals or specific groups of a specific type of animal (i.e., all of a specific person's cats, to be exact) were specifically designated in wills as inheriting property with rights of survivorship, with a mansion being one that I remember vividly back in the 1930s or so. The courts ruled that the animals did, in fact, own the mansion when the will was executed, but that they did require a trusteeship (as if a minor had inherited) with a guardian. When the animals passed away, however, the property reverted to more normal human heirs (presumably because the animals died intestate?)

Of course they do. You can't put a dog in a microwave, for example. The courts in the US have consistently decided that animals do have some basic rights.

Now, whether or not animals have the right to own property, including copyright, that's a completely different question. I suspect it will come down to a court decision.

Animals tend to be viewed as property so they can't own anything.

People used to be viewed a property. By your logic the very existence of slaves meant that no human could own anything. You may own an animal, but that does not mean that all wild animals are property. Besides, even in the time of slavery it was possible for a slave to own things; they could even earn money and buy their freedom.

The man spent thousand of dollars to get out there and a month slogging through the jungle. He put the work in. He owns the photo.

Except none of that matters. He did not physically take the pictures himself, nor did he fabricate the scenario in which the monkey would take the picture. According to the law, that means he does not own copyrights over the picture. Common sense says that the picture is his, but the law does not.

As he did not orchestrate that specific picture, he cannot claim copyright or royalties for it. If he goaded or tricked the monkey into taking the picture, then it would be 'his' picture and he could claim copyright. But he didn't do that and even said as much in a public forum, so he cannot claim copyright on the image.

Absolutely no legal background here, but I don't see the argument that the monkey has enough agency to produce an image for the public domain but not enough to control the copyright. I suppose that view hinges upon the digital photograph being considered a found object, but even then the 'discoverer' should retain some level of possession or ownership.

If a force of nature trips your shutter and you select, post-process, distribute and promote the image then it's your image. It didn't fall out of nowhere to land in the public domain.

Of course they do. You can't put a dog in a microwave, for example. The courts in the US have consistently decided that animals do have some basic rights.

depends whether those courts had the power, and decided to, set a precedent with their judgement I guess. I would be interested to see evidence that any country, even the US, considers animals as fundamentally more than property with their own rights AND that fact is formally enshrined in law. Their legal protection is from humans being disallowed to act in a certain way, which is not really conveying a right on the animal (just as it is illegal to burn down someone's house but the house itself has no rights).

Historic buildings have rights. The right to be protected/maintained, the right to not be altered, etc.

So, Wikimedia is claiming that if I were to set up a DLSR on a mount; set the exposure levels, focus, white balance, f-stop, and then dozen other settings; then trick a wild animal into pressing the shutter button by waving a piece of food over it, that I wouldn't own the copyright to that image. Rrrrrriiiight.

Who took the picture?

I think the real point here is that the photographer did not set the camera on a mount, did not set the exposure level, did not set the focus, did not set the white balance, did not set the f-stop, did not set any of "dozens of other settings". The ape picked up the camera and started playing with it. Every time the shutter was pressed, the camera took a picture. Whatever settings were not manually controlled (apparently focus was) the camera automatically set. So in fact the camera probably did most of the work.

Absolutely no legal background here, but I don't see the argument that the monkey has enough agency to produce an image for the public domain but not enough to control the copyright. I suppose that view hinges upon the digital photograph being considered a found object, but even then the 'discoverer' should retain some level of possession or ownership.

If a force of nature trips your shutter and you select, post-process, distribute and promote the image then it's your image. It didn't fall out of nowhere to land in the public domain.

Interesting. Without really understanding law, it seems that this would fall into a gray area of our legal system. Do we recognize "agency" in an ape? Does copyright require "agency"?

If this goes to court, that's the right line of thinking. If a rock fell on the shutter button and took a selfie, I don't think Wikipedia would make this argument, but it's identical in terms of the law. I'm pretty sure Wikipedia is going to lose this if the guy decides to sue, which I doubt he'll do.

Of course they do. You can't put a dog in a microwave, for example. The courts in the US have consistently decided that animals do have some basic rights.

depends whether those courts had the power, and decided to, set a precedent with their judgement I guess. I would be interested to see evidence that any country, even the US, considers animals as fundamentally more than property with their own rights AND that fact is formally enshrined in law. Their legal protection is from humans being disallowed to act in a certain way, which is not really conveying a right on the animal (just as it is illegal to burn down someone's house but the house itself has no rights).

Precedents are already set, in the US at least; animals can own property. In fact, animals can have copyright by precedent, since there are both an elephant and multiple great apes that have created admittedly artistic paintings (one has even had a gallery exposition), which have sold under copyright via trustees for the animals; the trustees themselves, however, were not the "owners" of the artworks. And to top it all off, one of the Apes even has been tested to fully understand artistic expression, and got quite upset when someone inquired if the work was finished, a mark of a petulant artist.

So the MONKEY owns the copyright, full stop. Courts have LONG decided how that's going to play out, in the US at least. And until/unless the monkey claims a DMCA violation, Wikimedia can use it, although TECHNICALLY that violates Wikimedia's usage guidelines.

If an animal takes a photo, there is no copyright. Only humans are granted copyright for works of "art." Art by the way is classified that only humans can comprehend and understand. You can rip off works created by all you want; you are breaking no laws.

I think the question is simple. Does the copyright for a photo belong to the owner of a camera or the one that takes the photo? If I lend my camera to a friend, and he takes a photo, the copyright is his, not mine. Wikimedia is correct.

That would mean the ape owns the copyright, not "the public". Wikimedia is trying to avoid paying royalties to anyone by doing this.

An ape can't own copyright. If the “creator” of a work is an entity that cannot own a copyright, the work falls into the public domain. Nobody is saying Wikimedia should ask the monkey for a license.

Not to single you out, as this claim has been repeated ad nausem throughout the comment thread, but I don't think that is true.

This case reminds me most of gorillas like Koko, Ivan, and Micheal that make the news from time to time due to the abstract paintings they make. The above would mean all those gorilla paintings done at zoos, refuges, etc. would be public domain and state property. Whereas instead, all rights are transferred to the legal personality having agency, i.e. the zoo or the researcher involved, who also gets the money when those works are turned into posters, sold at auction, etc.

That is, in previous cases where animals create art, the rights to work have not devolved to the public.

Koko, Ivan, Michael etc. are the property of the person or park claiming ownership. The works are created by the owner's property and the owner of the creative property gains legal ownership of the created property on that basis.

The photographer does not own the monkey involved and had no part in training the monkey to use the photographic equipment. So no claim to ownership as work performed by 'personal property'.or by 'property' trained by the person claiming ownership.

I'm not sure if there is even any claimed copyright in the paintings by the Gorillas. They do own the originals, as they are themselves physical property, and AFAIK, there are no release groups focused on primate paintings.

Well, how would the photo have come out if the camera owner hadn't traveled to that locale, set up his equipment, etc., etc. etc... I'd say all of the intentional actions were by the camera owner, and one unintentional action taken by the ape. NO actions taken by Wikimedia, so I don't think they have any standing at all to make any copyright claims.

Apparently you didn't read the article. Wikimedia is not trying to claim that Wikimedia owns the copyrights or photo. Wikimedia is trying to claim that nobody owns the copyrights or photo, and as such they don't have to pay the photographer royalties.

Possession does not imply ownership of the copyrights. Barring an agreement along the lines of "any pictures taken on company equipment belongs to the company," if I took pictures with his camera, then I'd own the copyright to those pictures even though they were taken using, and stored on, his camera.

The monkey does not 'own' the copyright in law because it is not a person, and in our system of law only people (or the fictional corporate person) can have legal standing.

HOWEVER - In order for copyright to arise, the work must constitute an 'original work of authorship'. Now the photograph is certainly original, but there is a real question as to authorship. Since it is clear that the photograph occurred unintentionally on the part of the photographer (the photographer didn't set up to have the monkey take the photo on purpose), there is a reasonably strong argument to say that no copyright at all has arisen on the image.

If that is the case, then saying 'monkey owns the copyright' is really the same as saying that there is no copyright on the image.

I wonder, did the photographer do any post-processing on that image? If so, then there may still be an argument that the processed image is subject to copyright.

The monkey does not 'own' the copyright in law because it is not a person, and in our system of law only people (or the fictional corporate person) can have legal standing.

HOWEVER - In order for copyright to arise, the work must constitute an 'original work of authorship'. Now the photograph is certainly original, but there is a real question as to authorship. Since it is clear that the photograph occurred unintentionally on the part of the photographer (the photographer didn't set up to have the monkey take the photo on purpose), there is a reasonably strong argument to say that no copyright at all has arisen on the image.

If that is the case, then saying 'monkey owns the copyright' is really the same as saying that there is no copyright on the image.

I wonder, did the photographer do any post-processing on that image? If so, then there may still be an argument that the processed image is subject to copyright.

If I recall correctly, in order for a new work to be claimed, the edits/post processing would have to result in a markedly different image. Cropping, adjusting the lighting, etc. I don't think fall into that category, as the image would be more or less still the same.

Actually, in the US at least, Courts have long decided that. The answer is Yes*. Yes, that's an asterix, indicating a "but....". In some famous inheritance cases, specific animals or specific groups of a specific type of animal (i.e., all of a specific person's cats, to be exact) were specifically designated in wills as inheriting property with rights of survivorship, with a mansion being one that I remember vividly back in the 1930s or so. The courts ruled that the animals did, in fact, own the mansion when the will was executed, but that they did require a trusteeship (as if a minor had inherited) with a guardian. When the animals passed away, however, the property reverted to more normal human heirs (presumably because the animals died intestate?)

That sounds right to me. The pet is property of the estate along with all other property of the deceased, and a trust can be set up to provide for that pet using the estate's assets, with the condition that when the pet dies the assets of the trust are then distributed to whoever the will dictates. Assuming the probate court goes along with it, and I don't see why they wouldn't unless some other potential heirs could make a sympathetic plea for it.

As for this... I'd say the only entity with any claim on ownership is the public... of Indonesia. If it were the US, it would therefore be in the public domain, but I don't know if Indonesia is like the US or like the UK (Crown copyright). But if it is in the public domain, I have to agree that the photographer has a pretty good claim on the touched up photo, and under no obligation to distribute the originals, even if the work they represent is public domain...

And that's ignoring that no one would be the wiser if he just lied about how the photo was created. The ape certainly can't contest his claim. But it wouldn't be as interesting then. (This is also the answer to the accidental photo question, I think: No one created them, so no one should be assigned copyright, but if you lie about how they were created you can get it anyway... But in exchange you lose what might be an interesting story.)

Of course they do. You can't put a dog in a microwave, for example. The courts in the US have consistently decided that animals do have some basic rights.

depends whether those courts had the power, and decided to, set a precedent with their judgement I guess. I would be interested to see evidence that any country, even the US, considers animals as fundamentally more than property with their own rights AND that fact is formally enshrined in law. Their legal protection is from humans being disallowed to act in a certain way, which is not really conveying a right on the animal (just as it is illegal to burn down someone's house but the house itself has no rights).

Precedents are already set, in the US at least; animals can own property. In fact, animals can have copyright by precedent, since there are both an elephant and multiple great apes that have created admittedly artistic paintings (one has even had a gallery exposition), which have sold under copyright via trustees for the animals; the trustees themselves, however, were not the "owners" of the artworks. And to top it all off, one of the Apes even has been tested to fully understand artistic expression, and got quite upset when someone inquired if the work was finished, a mark of a petulant artist.

So the MONKEY owns the copyright, full stop. Courts have LONG decided how that's going to play out, in the US at least. And until/unless the monkey claims a DMCA violation, Wikimedia can use it, although TECHNICALLY that violates Wikimedia's usage guidelines.

Are there legal citations for this precedent? That the people in the situations you cite above chose to designate the animal as the copyright holder does not mean this is a settled matter with respect to the law.

The people involved may have been quite sincere in wishing to give full credit to the creators of those works, but in truth their actions are more of marketing than legal precedent.

Have the courts decided this, or just some trustees who in all fairness, were not risking much. "Oh no, I don't own this painting, it belongs to the ape. But as the ape's trustee, I'll be sure to take good care of all the proceeds."

So, Wikimedia is claiming that if I were to set up a DLSR on a mount; set the exposure levels, focus, white balance, f-stop, and then dozen other settings; then trick a wild animal into pressing the shutter button by waving a piece of food over it, that I wouldn't own the copyright to that image. Rrrrrriiiight.

Who took the picture?

I think the real point here is that the photographer did not set the camera on a mount, did not set the exposure level, did not set the focus, did not set the white balance, did not set the f-stop, did not set any of "dozens of other settings". The ape picked up the camera and started playing with it. Every time the shutter was pressed, the camera took a picture. Whatever settings were not manually controlled (apparently focus was) the camera automatically set. So in fact the camera probably did most of the work.

What's the minimum he had to do to have copyright? I go out for a shoot, I pick the lens best suited for the work, I set my ISO, aperture and shutter speed, I adjust each as I shoot. If this guy is a professional photographer I doubt he's got it set on full auto, some thought was given to the shooting conditions.

I don't really get the argument for public domain, but I seem to be in the minority on that based on the comments here, I'm fine with being wrong about this, I just want to understand where the line is.

I did some additional reading and found: http://www.copyrightcompendium.com/#202.02%28b%29The term "authorship" implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.

Obviously there's a lot more text in there, but isn't it fair to suggest that the photo owes its origin to a human being? It just strikes me as odd to suggest that if he were rolling video and left the camera to be played with by monkeys there would be no dispute, but since the monkey was hitting the shutter it's public domain.

If the dude really prepared the scene (as in, directed light, framed the shot, did the post processing), then this is clearly his creative product. Who pressed the button doesn't matter. It's common practice to use an assistant as the camera operator, that doesn't mean that the photo belongs to the assistant. From what I understood, though, the monkey took his equipment out of his own volition, so the photographer had little involvement in the process.

The assistant (paid or unpaid, employee, companion or contractor) is usually classed as a for hire participant rather than a co-creator.

In this case, the monkey used some 'found' equipment to produce a large number of works and the photographer's only contribution was to judge which ones were sellable. Normally the copyright would vest in the monkey with the photog being credited as an assistant. However since the monkey is 'property without a current legal owner' and cannot own property in it's own right, the ownership goes to whoever finds the items and first declares ownership ... prime examples being diamonds, pearls and other items that can be picked up and claimed as personal property simply based on first possession (where property rights don't award ownership to the entity controlling the rights to items found on the property)

So while the photographer cannot claim to be the creator of the work. He is the one who has legal first possession and is claiming ownership of the copyright on that basis. He is additionally claiming that his equipment was used to create the work, therefore the work is his, but that is bad logic legally.

Now if the photog captures the monkey and becomes the legal owner of the monkey, then he could claim copyright by saying that the material was created by his property Assuming that is, that the legal ownership is recognized retroactively to the time when the monkey created the works.

If a thief steals the contents of a photo studio and uses that equipment to produce a valuable portfolio, the photo studio does not automatically own the copyright to the materials produced using the stolen equipment, although a court is able to transfer the copyright as part of the punishment for the theft...

Per the bolded, that is actually not how copyright law works [in the US]. You can't gain copyright to something by finding it. The letter of the law and the spirit of the law both require you to be a creator covered under relevant copyright law. Otherwise it defaults to public domain.

If you find a centuries old painting, you don't get copyright to it. You own the painting. But you don't magically get to generate a copyright in your own name just for finding it. Copyright does not get "created" for found items. It may often be able to act like a property right, but because it is in fact a created right, it only exists within the letter of the law and the related case law. Even if it seems like "well I found this and now own it" should mean "and so I also own the copyright," that's not the case within the law.

Even if the monkey does own the copyright, the photographer certainly did post-process the picture, which would transform the picture. He'd own the copyright on the transformed image for sure. Wikimedia is in the wrong here.

That presumes the version they hosted has been post-processed. Are you certain that it has?

So, Wikimedia is claiming that if I were to set up a DLSR on a mount; set the exposure levels, focus, white balance, f-stop, and then dozen other settings; then trick a wild animal into pressing the shutter button by waving a piece of food over it, that I wouldn't own the copyright to that image. Rrrrrriiiight.

Who took the picture?

I think the real point here is that the photographer did not set the camera on a mount, did not set the exposure level, did not set the focus, did not set the white balance, did not set the f-stop, did not set any of "dozens of other settings". The ape picked up the camera and started playing with it. Every time the shutter was pressed, the camera took a picture. Whatever settings were not manually controlled (apparently focus was) the camera automatically set. So in fact the camera probably did most of the work.

What's the minimum he had to do to have copyright? I go out for a shoot, I pick the lens best suited for the work, I set my ISO, aperture and shutter speed, I adjust each as I shoot. If this guy is a professional photographer I doubt he's got it set on full auto, some thought was given to the shooting conditions.

I don't really get the argument for public domain, but I seem to be in the minority on that based on the comments here, I'm fine with being wrong about this, I just want to understand where the line is.

I did some additional reading and found: http://www.copyrightcompendium.com/#202.02%28b%29The term "authorship" implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.

Obviously there's a lot more text in there, but isn't it fair to suggest that the photo owes its origin to a human being? It just strikes me as odd to suggest that if he were rolling video and left the camera to be played with by monkeys there would be no dispute, but since the monkey was hitting the shutter it's public domain.

If he intentionally set up the camera to be used by the monkey, then he is using the monkey as a tool.

The actual situation is that the camera was not set up for anything in particular. Manual settings were at whatever he uses for "snap shooting" where he doesn't have time to make adjustments. All composition and model selection was done independently of his direction or intent. All he did was try to get his cameras back and sort through the pictures afterward.

What he needed to do was tell everyone that he gave the cameras to the monkeys to see what they could do with them. That would have been sufficient to give him some grounds for claiming agency.

Even the "I tripped over a root and dropped the camera" jaw dropping photo involves the photographer's actions ... "the monkeys stole my cameras and played with them" does not.